AMERICAN SOCIETY FOR TESTING AND MATERIALS et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 121

MOTION for Summary Judgment by PUBLIC.RESOURCE.ORG, INC. (Attachments: #1 Memorandum in Support, #2 Statement of Facts, #3 Statement of Disputed Facts, #4 Objections, #5 Declaration of Carl Malamud, #6 Declaration of Matthew Becker, #7 Request for Judicial Notice, #8 Index of Consolidated Exhibits, #9 Text of Proposed Order)(Bridges, Andrew)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN SOCIETY FOR TESTING AND
MATERIALS d/b/a ASTM INTERNATIONAL;
NATIONAL FIRE PROTECTION
ASSOCIATION, INC.; and
AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR CONDITIONING
ENGINEERS,
Plaintiffs-Counterdefendants,
v.

Case No. 1:13-cv-01215-TSC-DAR
DECLARATION OF CARL
MALAMUD IN SUPPORT OF
DEFENDANT-COUNTERCLAIMANT
PUBLIC.RESOURCE.ORG’S MOTION
FOR SUMMARY JUDGMENT AND
OPPOSITION TO PLAINTIFFS’
MOTION FOR SUMMARY
JUDGMENT AND PERMANENT
INJUNCTION
Action Filed: August 6, 2015

PUBLIC.RESOURCE.ORG, INC.,
Defendant-Counterclaimant.

I, Carl Malamud, declare as follows:
1.

I am over the age of 18 years and am fully competent to testify to the matters

stated in this declaration.
2.

This declaration is based on my personal knowledge. If called to do so, I would

and could testify to the matters stated herein.
3.

I am the President and sole employee of Public.Resource.Org, Inc. (“Public

Resource”), which is a 501(c)(3) non-profit corporation headquartered in Sebastopol, California.
I have worked at Public Resource since I founded the organization in 2007. It is my only source
of employment.
4.

Public Resource’s core mission is to make the law and other government

materials more widely available so that people, businesses, and organizations can easily read and
discuss our laws and the operations of government. Attached to Public Resource’s Consolidated
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Index of Exhibits as Exhibit 1 is a true and correct copy of Public Resource’s Articles of
Incorporation from our website at https://public.resource.org/public.resource.articles.html.
5.

That mission grows out of my longtime professional commitment to improving

public access to essential documents that shape our fundamental activities. In 1991, I convinced
the Secretary-General of the International Telecommunication Union that the Blue Book, the
specification for how telephone networks operate, should be freely available on the Internet.
Working with Dr. Michael Schwartz, I transformed and posted the Blue Book into formats
compatible with modern publication technologies and made it available on the Internet. The
service was extremely popular, and the ITU today makes all of its standards documents freely
available on the Internet. I wrote a book about this experience called “Exploring the Internet”
(Prentice Hall, 1993).That book can be viewed and read at
http://museum.media.org/eti/Exploring_the_Internet.pdf.
6.

I was privileged to be able to participate in the Internet Engineering Task Force,

the standards body that has developed most of the standards that specify the functioning of the
Internet, during the early 1990s, a period of very rapid development, both in the functionality of
the Internet and its scope.
7.

In 1993, when the Internet was beginning to grow explosively, I created the first

radio station on the Internet, operating as a nonprofit corporation called the Internet Multicasting
Service. In addition to transmitting audio and video programming, the service also provided the
first high-speed Internet link into the White House, using a temporary infrared connection from
our studios in the National Press Building. The radio service, which I dubbed “Internet Talk
Radio,” became a member of the Public Radio Satellite System, received accreditation from the
U.S. House and Senate Senate Radio & Television Correspondents Galleries, sent out live audio

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from the floors of the House and Senate, streamed all National Press Club luncheons, and
transmitted original programming. Many of those programs can still be listened to at
http://museum.media.org/radio/.
8.

At the Internet Multicasting Service, I also put a number of important government

databases online, including the Securities and Exchange Commission EDGAR database and the
U.S. Patent database. When the SEC took the EDGAR service over from me, I loaned it
computers and donated all of our source code so they could be up and running quickly. The SEC
ran the system on our software for several years. On October 10, 1995, the Hon. Arthur Levitt,
Chairman of the SEC, wrote to me thanking us for our efforts and calling the project an
“extraordinary achievement.”
9.

After I started Public Resource in 2007, one of our first efforts was to place online

the historical opinions of the U.S. Courts of Appeals, material that was not previously available
on the Internet. Public Resource also converted all of the opinions in the first 40 volumes of the
Federal Reporter as well as the Federal Cases into Hypertext Markup Language (HTML) and
placed those online. These materials are now used by numerous websites that provide access to
legal materials.
10.

Public Resource maintains an archive of laws and other government authored

materials on several domains under the public.resource.org website.
11.

Public Resource has helped increase access to many other court documents. We

scanned approximately 3 million pages of briefs submitted to the U.S. Court of Appeals for the
Ninth Circuit dating back to the creation of that court and have placed those materials online.
The materials may be downloaded from https://law.resource.org/pub/us/case/ca9/.

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12.

Public Resource has conducted a number of other projects that have resulted in

more government information being placed online. Using volunteers in Washington D.C. with
the cooperation of the Archivist of the United States, we put approximately 6,000 government
videos on YouTube and the Internet Archive for people to use with no restriction, a service we
call FedFlix. It has had over 60 million views. The videos may be viewed at
https://www.youtube.com/user/PublicResourceOrg and https://archive.org/details/FedFlix.
13.

Public Resource also placed over eight million Form 990 exempt non-profit

organization returns obtained from the IRS on the Internet. As part of that posting, we conducted
an intensive privacy audit which led to fundamental changes in how the IRS deals with privacy
violations. Through a Freedom of Information Act request and litigation, we obtained release of
high-quality versions of Form 990 filings, which the IRS had refused to make available. The
court decision in that case (Public.Resource.org v. United States Internal Revenue Service, No.
3:13-cv-02789-WHO, ECF No. 62 (N.D. Cal. January 29, 2015)) led to a recent announcement
by the IRS that all e-file returns will be made available in bulk in 2016. I am pleased to be
working with the IRS as a member of the test group for this service.
14.

In 2007, I wrote a report addressed to Speaker of the House Nancy Pelosi

suggesting that video from Congressional hearings should be more broadly available on the
Internet. On January 5, 2011, Speaker John Boehner and Representative Darrell Issa wrote to me
asking me to assist them in carrying out that task. In a little over a year, Public Resource was
able to put over 14,000 hours of video from hearings on the Internet, to assist the House
Committee on Oversight and Government Reform in posting a full archive of their committee
video and, for the first time ever for congressional hearings, to provide closed-captioning of

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those videos based on the official transcripts. The letter from Speaker Boehner may be found at
https://law.resource.org/rfcs/gov.house.20110105.pdf.
15.

Also in 2008, I examined the issue of availability of state-mandated safety codes,

such as building, electric, plumbing, and fire codes. At the time, none of those documents were
available freely on the Internet. I made a detailed survey of state regulations and statutes, looking
for direct and specific incorporation of particular model codes. Over the next few years, Public
Resource posted many of the incorporated state safety codes for U.S. states.
16.

Public Resource’s process of posting these codes has been deliberate and careful

and has grown in sophistication over time. First, we purchased paper copies of codes that are
incorporated into law. Then, we scanned the documents, applied metadata and optical character
recognition (OCR) to the PDF files, and placed a cover sheet on each document explaining that
this was a posting of the law of a specific jurisdiction.
17.

Over time, we also began converting some of these standards into modern HTML

format, including setting the tables, converting formulas to Mathematics Markup Language
(MathML), and converting graphics to the Scalable Vector Graphics (SVG) format. Coding
formulas in MathML makes them significantly more accessible to people who are visually
impaired. Converting the graphics to SVG means they can be resized smoothly, and can be
incorporated into graphic editing programs and word processing programs. Converting the
documents into standard HTML means the documents can be more readily used on different
platforms, such as tablets and smartphones.
18.

In late 2008, I was asked by the Obama-Biden Transition Project to consult on the

subject of how the Official Journals of Government could be made more readily available. Many
of my recommendations were adopted, including removing the subscription fee from bulk access

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to the Federal Register. That led to a dramatic transformation of the Federal Register, which is
now based on open source software that was developed by three volunteers in California and
then adopted by the government. That system can be viewed at https://federalregister.gov/. A
copy of my memorandum to the Obama Transition Project may be viewed at
https://public.resource.org/change.gov/reboot.register.pdf.
19.

In 2011, I began to look seriously at the federal use of standards incorporated by

reference into the Code of Federal Regulations. I was participating at the time as an appointed
member of the Administrative Conference of the United States, and I carefully read materials
such as the legislative history of the mechanism of incorporation by reference, the Code of
Federal Regulations provisions for incorporation by reference, and cases such as the Veeck
decision.
20.

In 2012, I began a new initiative to make standards incorporated by reference into

federal law available on the Internet. I examined the Code of Federal Regulations carefully and
selected 73 standards that spanned a variety of agencies. I purchased physical copies of each of
these standards. I created 25 paper replicas of each of these standards, and placed a cover sheet
on each one indicating which section of the CFR incorporated the document.
21.

To accompany the 73 standards, I also created a detailed cover memo, titled

“Notice of Incorporation,” which included letters addressed to seven senior government officials.
The memo included a request for comments from each of the ten standards development
organizations (SDOs) named in the document by May 1, 2012. I packaged the 73 standards, the
Notice of Incorporation, two posters, and other materials in 29-pound boxes and sent the boxes
to the seven government officials and the ten SDOs. The standards bodies included ASTM,
NFPA, and ANSI. I sent the boxes by Federal Express on March 15, 2012. A copy of the Notice

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of Incorporation memo may be found at
https://law.resource.org/pub/us/cfr/notice.sdo.20120315_to.pdf.
22.

After sending the standards, I received acknowledgements from several

government addressees, including personal notes from the Chairman of the Federal Trade
Commission, the Archivist of the United States, and the Chairman of the House Committee on
Oversight and Government Reform. I did not receive any response from the SDOs.
23.

On May 1, 2012, I posted the 73 documents on the Public Resource web site. I

also began a process of examining the Code of Federal Regulations, the National Institute of
Standards and Technology (NIST) database of Standards Incorporated by Reference (SIBR), and
the Office of the Federal Register’s incorporation by reference listings to put together a list of
documents that are incorporated into the CFR. I then began the process of trying to procure these
documents, many of which are unavailable for purchase from the SDOs and which I had to
obtain on the used book market.
24.

Every standard that I have posted on my website has been incorporated into law

by a governmental authority. Public Resource does not impose any restrictions on the use of the
standards. Public Resource has never charged for access to the standards or other legal materials,
and has never asserted any intellectual property rights in them. We do not require people to log
in or register before accessing content from Public Resource.
25.

Public Resource has posted PDF versions of each incorporated standard at issue

available on its website. The PDF version accurately appeared as a scan of a physical version of
the incorporated standard. Most PDF versions also includes embedded text generated by OCR,
which enables software-based searching of the document. The embedded text does not change
the appearance of the document.

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26.

Public Resource has continued to develop techniques for making the documents

that we post more usable, including double-keying and adding markup to HTML and SVG
versions of the documents. Double-keying means having two separate typists copy the text of the
incorporated standard; the results are then compared in order to eliminate any errors. We have
also developed new markup techniques that increase the accessibility of the documents to people
with visual impairments and print disabilities. We have also made significant advances in adding
metadata to the documents, so each section, table, figure, and formula can be bookmarked and
linked to, making internal navigation within the documents significantly friendlier for the user.
27.

We have applied these markup techniques to a number of standards incorporated

by reference. Public Resource’s goal is to have the entire CFR, including all documents
incorporated by reference, available in this new format so that users can seamlessly and
transparently navigate the entire CFR. I believe this will be useful for employees of affected
business enterprises, researchers and journalists covering public policy issues, government
workers at the federal, state, and local levels who must interact with the code as part of their
daily activities, and for interested citizens.
28.

We have made several examples of our new approach available on the net and

submitted them as examples of how the law can be made better in formal comments to Notices
of Proposed Rulemaking that propose to incorporate standards by reference. For example, as part
of a submission to the Consumer Product Safety Commission on a proposed incorporation of an
ASTM standard on infant bathtubs, I submitted example standards such as ASTM F963, the toy
safety specification which was mandated by Congress in 15 USC 2056b. That standard may be
found at https://law.resource.org/pub/us/cfr/ibr/003/astm.f963.2011.html and our comment to

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CPSC may be found at
https://law.resource.org/pub/us/cfr/regulations.gov.docket.14/cpsc.gov.20151028.html.
29.

Public Resource displays links to standards incorporated by reference into the

Code of Federal Regulations in a table that identifies the standards by their alphanumeric code,
its year, the developing organization, the title of the standard, and the C.F.R. section that
incorporated the standard by reference. Attached to Public Resource’s Consolidated Index of
Exhibits as Exhibit 2 is a true and correct copy of the table of standards on public.resource.org,
which is maintained at https://law.resource.org/pub/us/cfr/manifest.us.html.
30.

Public Resource has one employee, myself, and three contractors who assist me in

systems administration, conversion of graphics and formulas, and legal advice. Our core
operating costs are under $500,000 per year, and we are funded entirely by donations,
contributions and grants. Rather than adding staff, I have prioritized capital expenses, such as the
purchase of the U.S. Court of Appeals backfile for $600,000 and the scanning of 3 million pages
of Ninth Circuit briefs. Public Resource does not accept donations that are tied to the posting of
specific standards or groups of standards. Public Resource’s operating income is not based on the
amount of traffic its websites receive. Public Resource does practice search engine optimization
to improve the accuracy of how information on its websites is described. Though we are a small
organization, we observe all current best practices of corporate governance and transparency. I
am proud that we have been awarded the GuideStar Gold Seal for nonprofit transparency. A full
repository of our financials and other disclosures is maintained at
https://public.resource.org/about/.
31.

Public Resource voluntarily applies notices to the HTML versions of standards on

its website. Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 3 is a true

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and correct copy of the most recent version of the notice, which is appended to ASTM F963
(2011) and is maintained at https://law.resource.org/pub/us/cfr/ibr/003/astm.f963.2011.html.
32.

There are errors in NFPA and ASHRAE documents for which they periodically

issue errata. Public Resource carefully tracks those errata and works to incorporate them into the
documents on our web site. ASTM does not provide errata, so it is difficult to determine where
their technical committees have identified errors.
33.

Errors can also be introduced in the process of transformation into HTML.

34.

I pay a great deal of attention to quality control, including verifying the validity of

the HTML, SVG, and MathML that I post. I respond immediately to any reports of errors from
the public. For example, during my deposition in this case, ASTM pointed out some errors in a
document on the Public Resource website. Immediately after the deposition, I did a careful scan
of the document and fixed the errors they had pointed out and some additional ones that I
discovered.
35.

On behalf of Public Resource, I purchased a physical copy of the 2011 National

Electrical Code. The copy spanned 886 pages. The copy that I purchased did not include the
requirement that high-voltage cables be shielded. Public Resource posted electronic versions of
the physical copy that I purchased on its website in PDF and HTML formats.

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36.

My work at Public Resource, including the posting of standards incorporated by

reference into federal and state law and my efforts to post briefs, opinions, regulations, statutes,
and other materials that are edicts of government, are based on a long-held belief that the
primary legal materials of our country must be available to all, especially those who lack the
means to access the law in the status quo, because an informed citizenry is the key to the
functioning of our democracy_
I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.
Executed this

2..1 day of December, 2015 at Sebastopol, California.

~//~
.,.

,,,,,,/'

Carl Malamud

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